Commonwealth v. HackettCommonwealth v. Hackett
- Reporters:
- , , ,
- Before:
- Castille
Lead
OPINION
Justice BAER.This is а direct appeal from an order of the trial court, which granted Appellee Richard Hackett’s second petition filed pursuant to the Post Conviction Relief Act (PCRA),
While the facts underlying Appellee’s conviction of first degree murder are set forth in our opinion affirming his judgment of sentence on direct appeal, Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719 (1993), a brief recitation thereof will facilitate an understanding of the issues raised herein.
Appellee’s murder conviction arises from his involvement in a conspiracy with Marvin Spence, James Gray, and Keith Barrett to kill Gregory Ogrod -and Ogrod’s girlfriend, Maureen Dunne. The testimony presented at trial revealed that prior to the night of the murder, Spence and Appellee had unsuccessfully solicited David Carter to kill Ogrod and Dunne. On July 31, 1986, at approximately 1:45 a.m., Jeffrey Horoschak called Ogrod’s
About one hour after the murder, Appellee called his girlfriend, Wendi Rosenblum, and told her Ogrod was dead. Appellee directed Rosenblum to tell police that he had stayed at Rosenblum’s apartment all night. While still covered in blood, Spence confessed to Carter, who was apparently with him after the incident, that he had committed murder. A week later, Appellee’s girlfriend observed Appellee dispose of a crowbar.
Appellee, Spence, Gray, and Barrett were tried together in a jury trial in 1988. The Commonwealth presented Ogrod’s identification of Spence as one of the attackers as well as the testimony of Horoschak, Rosenblum, Carter, and May. During jury selection, Spence, who is African-American, raised a claim under Batson, alleging that the prosecutor, Jack McMahon, improperly struck black jurors. Appellee, who is white, raised no such claim. Following the jury trial, all four defendants were convicted of murder.2 On July 17, 1988, Appellee and Spence were sentenced to death and Gray and Barrett were sentenced to life imprisonment. Post-trial motions were denied. Appellee filed a direct appeal in our Court, but did not raise a Batson claim. We affirmed Appellee’s judgment of sentence on June 30, 1993. Commonwealth v. Hackett, supra.3
For purposes of the PCRA, Appellee’s judgment of sentence became final in September of 1993, when thе time for seeking certiorari from the United States Supreme Court expired.4 See
Appellee subsequently filed a petition for a writ of habeas corpus in federal court.7 On August 15, 2002, while the federal habeas corpus petition was pending, Petitioner filed a second PCRA petition, raising a single claim based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), which held that execution of mentally retarded criminals violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The PCRA court dismissed Appellee’s second PCRA petition without a hearing because Appellee’s federal habeas corpus petition was pending. Appellee appealed to our Court, requesting a remand to the PCRA court on his Atkins claim. The Commonwealth did not oppose Appellee’s request. On October 21, 2003, this Court reversed the PCRA court’s order and remanded for further PCRA proceedings, citing Commonwealth v. Whitney, 572 Pa. 468, 817 A.2d 473 (2003) (holding that the pendency of a petitioner’s federal habeas corpus petition does not divest a trial court of jurisdiction to address a PCRA petition). Commonwealth v. Hackett, 575 Pa. 49, 834 A.2d 514 (2003). As discussed infra, at 17, the record is unclear as to whether proceedings were thereafter conducted on Appellee’s Atkins claim.
Significantly, on May 3, 2004, Appellee filed a supplemental PCRA petition, asserting a claim of racially discriminatory jury selection under Batson. Appellee’s Batson claim was based on the trial court’s March 22, 2004 ruling in codefendant Spence’s PCRA matter, Commonwealth v. Spence, CP# 8609-3311, in which Spence was granted a new trial due to Prosеcutor McMahon’s purposeful discrimination in
Appellee contended that his supplemental PCRA petition fell under the exception to the PCRA’s one-year timeliness requirement set forth at
Appellee also alleged in his supplemental PCRA petition that he was entitled to relief on his Batson claim under the state habeas corpus statute,
On October 5, 2005, without holding an evidentiary hearing, the PCRA court granted Appellee a new trial on the Batson claim. The court rejected the Commonwealth’s contention that it lacked jurisdiction over Appellee’s PCRA petition because it was untimely filed. The court reasoned that the “trigger-date” for the sixty-day provision in
The Commonwealth argues that the PCRA court lacked jurisdiction over Appellee’s petition’ because it was untimely filed. It contends that this Court has repeatedly held that the PCRA time requirements are jurisdictional in nature and that we have no authority to create ad hoc non-statutory exceptions to them. It alleges that the PCRA court’s ruling on Spence’s timely filed PCRA petition cannot serve as the newly discovered “fact” upon which Appellee’s Batson claim is predicated pursuant to
Our analysis begins with the plain language of
(b) Time for filing petition.—
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
This Court has repeatedly held that the time limitations pursuant to the PCRA amendments are jurisdictional. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157, 1161 (2003); Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 222 (1999). Jurisdictional time limits go to a court’s right or competency to adjudicate а controversy. Id. We have further held that “the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition
It is clear that the instant PCRA petition filed on August 15, 2002, and the supplement to that petition filed on May 3, 2004, are facially untimely as they were not filed within one year of the date Appellee’s judgment of sentence became final in 1993. Notwithstanding that Appellee’s judgment of sentence became final prior to the 1995 amendments to the PCRA, this matter involves Appellee’s second PCRA petition and it therefore could not fall under the exception to the timeliness requirements for first PCRA petitions filed within one year of the effective date of the amendments. Section 3(1) of the Act (Spec.Sess. No. 1), Nov. 17, 1995, P.L. 1118, No. 32. Thus, Appellee must demonstrate the substantive requirements for one of the exceptions to the time-bar set forth in
As to Appellee’s Batson claim,11 we agree with the Commonwealth that Appellee has failed to plead and prove the applicability of
Appellee’s contentions to the contrary are not persuasive. Appellee first alleges that Prosecutor McMahon’s reasons for
Having concluded that Appellee’s Batson claim was untimely filed and that the PCRA court lacked jurisdiction to grant relief on such claim, we next address Appellant’s remaining allegations, which were preserved in his supplemental PCRA petition.
Arguing in the alternative, Appellee contends that a Batson claim does not fit within the eligibility requiremеnts of Section 9543(a)(2) of the PCRA 13 and therefore he is entitled to state habeas corpus relief. Relying on subsection (a)(2)(i) of Section 9543’s PCRA eligibility requirements, Appellee argues that a Batson claim is not a constitutional violation that “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Id.14 Instead, he maintains that the injury against which Batson protects is the equal protection right of venirepersons not to be discriminated against, which is unrelated to the reliability of the verdict rendered. Appellee concludes that because the PCRA does not afford him a remedy on his Batson claim, he is entitled to state habeas corpus relief.
We decline Appellee’s invitation to construe a Batson claim as falling outside the statutory framework of the PCRA. Initially, we note that both the PCRA and the state habeas corpus statute contemplate that the PCRA subsumes the writ of habeas corpus in circumstances where the PCRA provides a remedy for the claim.
Contrary to Appellee’s contention, we have held that the scope of the PCRA eligibility requirements should not be narrowly confined to its specifically enumerated areas of review. Commonwealth v. Judge, 591 Pa. 126, 916 A.2d 511, 520 (2007). Such narrow construction would be inconsistent with the legislative intent to channel post-conviction claims into the PCRA’s framework, id., and would instead create a bifurcated system of post-сonviction review where some post-conviction claims are cognizable under the PCRA while others are not. Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564, 569-70 (1999).
Instead, this Court has broadly interpreted the PCRA eligibility requirements as including within its ambit claims such as this one, regardless of the “truth-determining process” language that Appellee invokes from Section 9543(a) (2) (i). See Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (holding that claim challenging counsel’s effectiveness for failing to file a petition for allowance of appeal is cognizable under PCRA); Commonwealth ex. rel. Dadario v. Goldberg, 565 Pa. 280, 773 A.2d 126 (2001) (holding that claim alleging counsel’s ineffectiveness during the plea bargaining process is cognizable under the PCRA); Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999) (holding that claim alleging ineffective assistance of counsel during penalty phase of capital case is cognizable under the PCRA); Commonwealth v. Lantzy, supra, (holding that claim alleging ineffective assistance of counsel for failing to file an аppeal is cognizable under the PCRA).
We find that Appellee’s Batson claim, which essentially attacks his underlying murder conviction, is akin to the aforementioned claims which have been held to be within the ambit of the PCRA and is unlike those unique claims which fall outside the PCRA’s statutory scheme. See Commonwealth v. West, 595 Pa. 483, 938 A.2d 1034 (2007) (holding that substantive due process challenge to continued validity of defendant’s judgment of sentence after a nine-year delay is not cognizable under the PCRA); Commonwealth v. Judge, supra, (holding that allegation that Canada violated appellant’s rights under the International Covenant for Civil and Political Rights is not cognizable under the PCRA).15 As the PCRA provides a remedy on a Batson claim, Appellee is not entitled to seek habeas corpus relief.
Appellee next contends that granting Spence a new trial while denying him relief for the same constitutional violation deprives him of due process and equal protection as guaranteed by the United States and Pennsylvania Constitutions.
We recognize that Appellee’s Batson claim is based upon the venirepersons’ equal protection right not to be discriminated against, while his due process/equal protection claim alleges his own equal protection right not to be treated differently from his co-defendant. . Nevertheless, the due process/equal protection claim is likewise untimely. The PCRA court’s grant of relief to Spence cannot serve as a “fact” which was “unknown” to Appellee and “could not have been ascertained by the exercise of due diligence” pursuant to
Appellee’s reliance on Commonwealth v. Cruz, 578 Pa. 263, 851 A.2d 870 (2004) is therefore misplaced as Cruz did not involve an interpretation of the PCRA’s timeliness requirements. Instead, the petitioner in Cruz raised a claim in a timely PCRA petition that he was denied due process and equal protection because he received disparate treatment on direct appellate review, when compared to his codefendant. Although both the petitioner and his codefendant had standing to seek and, in fact, sought suppression of the same evidence, the petitioner’s codefendant was granted a new trial on direct appeal on the suppression issue and the petitioner was denied the same. While this Court did not grant relief on equal protection or due process concepts, id. at 877, we held that the petitioner was entitled to relief on his underlying suppression issue, which was “available on collateral review in the particularized circumstances presented.” Id. at 878. Cruz is clearly distinguishable as Appellee never sought the relief that Spence was granted and was not entitled to the same. Accordingly, Appellee has failed to demonstrate a viable factual predicate to invoke the after-discovered fact exception of
Moreover, Appellee would not have been entitled to the same constitutional treatment had he timely preserved such сlaim. Although Appellee’s trial occurred after Batson had been decided, he had no basis at that time to challenge the discriminatory striking of African American venirepersons because Appellee is Caucasian. It was not until three years later that the United States Supreme Court held in Powers v. Ohio, 499 U.S. 400, 402, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), that a criminal defendant may object to race-based exclusions of prospective jurors, whether or not the defendant and the excluded juror share the same race. This Court has expressly ruled that Poivers cannot be retroactively applied to a PCRA petitioner where that petitioner failed to preserve the issue by challenging the Commonwealth’s striking of African-American jurors at trial and again on appeal. Commonwealth v. Tilley, 566 Pa. 312, 780 A.2d 649, 652 (2001).
Our holding in Tilley was reaffirmed in Commonwealth v. Sneed, supra. In Sneed, 587 Pa. 318, 899 A.2d 1067 (2006), the PCRA petitioner’s trial took place prior to the United States Supreme Court’s decision in Batson. In his subsequent PCRA petition, the petitioner alleged a Batson violation. We held that such claim
Thus, in addition to the fact that Appellee failed to raise a Batson claim in a timely PCRA petition, our decisions in Tilley and Sneed clearly establish that Appellee would not be entitled to relief based upon a retroactive application of Powers because he failed to preserve the underlying claim.
Appellee next contends that that this Court should review his death sentence under
Finally, Appellee argues that in the event that we find his claims to be meritless, we should nevertheless remand this matter to the PCRA court so that a hearing can be held on his Atkins claim. Appellee aсknowledges that the PCRA court’s opinion stated without explanation that the court had “denied relief under the Atkins claim” on October 5, 2005. PCRA Court Opinion dated June 8, 2006 at 2. He points out, however, that at the PCRA hearing held on October 5, 2005, the court expressly indicated that it was not ruling on the Atkins claim. Appellee’s claim in this regard is supported by the record, which reveals the following:
COUNSEL FOR THE COMMONWEALTH: Your Honor, as far as the Atkins claim, are you just not going to rule on that?
THE COURT: I’m not going to rule on that. If you want me to have a hearing on Atkins, I’ll have a hearing on Atkins.
Notes of Testimony of PCRA Hearing dated October 5, 2005, at 18. Further, the court’s handwritten order of October 5, 2005 states, “Court grants a new trial under ‘Batson ’ claim 476 U.S. 79, 106 S.Ct. 1712Not under Atkins.” Such order does not indicate that the Atkins claim was fully considered and denied.
The Commonwealth responds that Appellee should not be given another opportunity to present evidence on the Atkins issue when we specifically remanded this case for that рurpose in 2003, and Appellee failed to present any evidence on the issue.16 It is unclear, however, whether Appellee, in fact, was given an opportunity to present evidence on this claim. Under these circumstances and because Appellee is at least entitled to a ruling on the Atkins claim so that the issue can be reviewed on appeal, we remand the matter to the PCRA court for disposition of the Atkins claim.
Accordingly, for the reasons set forth herein, we vacate the order of the PCRA
* * *
Notes
. An order granting post-conviction reliеf in a case in which the death penalty has been imposed is directly appealable by the Commonwealth to this Court.
. Appellee was also convicted of aggravated assault, possession of an instrument of crime, and criminal conspiracy.
. Spence raised in his direct appeal the issue of whether a new trial was warranted due to, inter alia, Prosecutor McMahon’s alleged misconduct in the striking of black jurors. Our Court affirmed Spence’s judgment of sentence, holding that we were unable to consider his Batson claim because he failed to develop the requisite record identifying the race of all of the venirepersons struck by the prosecution, the race of the venirepersons acceptable to the prosecution but struck by the defense, and the race of the jurors who actually served. Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1182-83 (1993).
. Appellee had 90 days from the date of this Court‘s decision on direct appeal to file a petition for a writ of certiorari with the United States Supreme Court. United States Supreme Court Rule 13.
. As discussed infra, the PCRA provides for an exception to the one-year timeliness requirement where the PCRA petition alleges and the petitioner proves one of the circumstances set forth at
. One of Appellee‘s ineffectiveness claims challenged trial counsel’s effectiveness for failing to object and move for a mistrial on the ground that the Commonwealth exercised its peremptory strikes in violation of Batson. We concluded that because Appellee had failed to develop the requisite record identifying the race of the relevant venirepersons, his underlying claim lacked merit and counsel could not be deemed ineffective for failing to raise it. 735 A.2d at 695.
. The District Court granted the petition and awarded Appellee a new penalty hearing based on Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (vacating a death sentence because there was a substantial probability that the jury may have interpreted the court‘s instructions and verdict form as precluding it from considering any mitigation evidence unless all jurors unanimously agreed on the existence of a particular mitigating circumstance). The United States Court of Appeals for the Thix-d Circuit, however, reversed the grant of habeas relief. Hackett v. Price, 381 F.3d 281 (3rd Cir.2004) (holding that Hackett failed to demonstrate a reasonable likelihood that the jury applied the challenged instruction and verdict form in a way that prevented the consideration of coxistitutionally relevant evidence), cert. denied, Hackett v. Folino, 544 U.S. 1062, 125 S.Ct. 2514, 161 L.Ed.2d 1114(2005).
. Appellee asserts that the Commonwealth did not appeal the new trial awarded to Spence. Appellee’s Brief at 22.
. Appellee also alleged that his supplemental PCRA petition was filed within sixty days of the order of the Third Circuit Court of Appeals, which denied reargument in Holloway v. Horn, 355 F.3d 707 (3rd.Cir.2004), cert. denied, Beard v. Holloway, 543 U.S. 976, 125 S.Ct. 410, 160 L.Ed.2d 352 (2004) (holding that this Court’s procedural requirements regarding the development of a complete record to establish a prima facie case of a Batson violation is an unreasonable application of federal law). The PCRA court did not base its grant of relief on Holloway and Appellee has abandoned any reliance upon that decision in his brief filed in this Court. Moreover, we have adhered to the procedural requirements criticized in Holloway as neither this Cоurt nor the United States Supreme Court has explicitly overruled our long line of precedent mandating a full and complete record to establish a Batson violation. Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898, 910 n. 15 (2004); Commonwealth v. Spotz, 587 Pa. 1, 896 A.2d 1191, 1212 n. 27 (2006).
. This Court‘s standard of review is limited to whether the PCRA court‘s order is supported by the record and free of legal error. Commonwealth v. Abu-Jamal, 574 Pa. 724, 833 A.2d 719, 723 (2003).
. As Appellee raised separate claims in his PCRA petition, it is appropriate that we examine each contention independently to determine whether it was timely raised, and therefore whether we have jurisdiction to address it. Commonwealth v. Fahy, 737 A.2d at 222.
. Appellee further relies on Johnson v. United States, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005), for the proposition that judicial findings can be triggers lor purposes of construing a statutory timeliness provision. Johnson, however, is clearly distinguishable on both factual and legal grounds. Interpreting a one-year federal statute of limitations, the United States Supreme Court held in Johnson that the vacatur of a prior stаte conviction used to enhance a federal sentence constituted a new “fact,” which commenced the statute of limitations for collaterally attacking the federal sentence. Here, Appellee is proceeding under the PCRA and has failed to allege that any new facts arose in his case. Rather, the basis for Appellee‘s invocation of the timeliness exception for his Batson claim is that his codefendant was granted relief on a claim that Appellee never raised.
. Section 9543, entitled “Eligibility for relief,” provides in relevant part as follows:
(a) GENERAL RULE. — To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
. Appellee presumably concedes that the remaining subsections of
. Moreover, this Court has examined Batson claims within the PCRA framework, albeit without challenges being raised as to the applicability of the PCRA eligibility requirements relied upon here by Appellee. See Commonwealth v. Jones, 590 Pa. 202, 912 A.2d 268 (2006) (finding Batson claim waived); Commonwealth v. Sneed, supra, (holding that while Batson claim was waived, derivative claim that counsel was ineffective for failing to raise the Batson claim is cognizable under the PCRA);. Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978 (2002) (finding Batson claim waived).
. The Commonwealth conceded that the Atkins issue was timely filed. Notes of Testimony of PCRA Hearing dated October 5, 2005, at 6.
. We leave it to the PCRA court‘s discretion whether a hearing is necessary to еxplore the Atkins claim and to enable the court to issue a reasoned ruling and opinion on the matter.
Concurrence Opinion
concurring.
I join the learned Majority Opinion, which vacates the erroneous order of the PCRA1 court granting appellee relief on his serial petition, in its entirety. Appellee’s belated Batson2 claim, as well as his derivative equal protection/due process claim, plainly is time-barred and not subject to any of the limited time-bar exceptions, and the PCRA judge should have followed those statutory commands. See
It appears that the PCRA court accepted appellee’s alternative theory that the grant of Batson relief to his co-defendant contemporaneously gave rise to a viable due process or equal protection right to demand identical relief via a serial PCRA petition. As the Majority notes, the Honorable Willis Berry (who was not the trial judge) made a legal finding of a Batson violation with respect to co-defendant Spence, who allegedly is African-American, who actually raised a Batson objection at trial, and who apparently timely renewed that challenge after disclosure of the “McMahon tape.” Judge Berry erroneously concluded that the relief he granted on the co-defendant’s preserved claim was a “new fact” which made appellee’s own untimely and unpreserved Batson claim — raised in a serial petition — both timely and meritorious. At the end of his explаnation of why he granted Batson relief, Judge Berry addressed appellee’s alternative “equal protection” theory in the following concluding paragraph:
There was purposeful discrimination, and a re-trial for [co-defendant] Spence is scheduled.... It would be patently unjust to deny Petitioner’s [sic] equal protection under the Pennsylvania and U.S. Constitutions on the basis that he did not share his co-defendant’s skin color, especially when the retrial will be for the actual doer, and Petitioner was the lookout.[4] In fact, to do the rightthing, every co-defendant — Moms Spence, Richard Hackett, James Gray, and Keith Barrett — whether raised in a petition or not, should have their convictions overturned and given new trials.
This analysis is irrelevant and unpersuasive as a jurisprudential matter. Ours is a nation, and a Commonwealth, оf laws. The judiciary exists to construe the law, not to indulge vague notions of what a judge may feel would amount to “doing the right thing” in the absence of law. The PCRA judge should be mindful of his duties to consult and apply the law, including the salutary restrictions in the PCRA.
The PCRA judge’s performance on the Atkins issue, which this Court remanded for reconsideration in 2003, is equally troubling. The PCRA court’s indeterminate handling of an Atkins claim we specifically remanded was as superficial as its analysis of the defaulted Batson and unripe equal protection claims it inexplicably embraced.
Finally, I write separately to address Justice Saylor’s observation in his Concurring Opinion that “Batson violations are a form of structural error ‘affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.’ ” Concurring Slip Op. at 1 (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). As support for its characterization of Batson violations as a type of structural errоr, the Concurring Opinion cites the U.S. Supreme Court’s decisions in Fulminante, United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), and Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), as well as this Court’s decision in Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 734 & n. 18 (2000). Yet, neither Neder nor Dominguez Benitez mentioned Batson violations at all as each addressed structural error only generally, see Neder, 527 U.S. at 8-9, 119 S.Ct. 1827; Dominguez Benitez, 542 U.S. at 81, 124 S.Ct. 2333, and, while Fulminante did identify discrimination in grand jury selection as a type of structural error, it did so without elaboration and only as one example among a laundry list of many others, see Fulminante, 499 U.S. at 310, 111 S.Ct. 1246. Similarly, Basemore merely commented without elaboration that “Batson violations fall within a limited and unique category of claims which, by the nature of their impact upon the fundamental fairness of a trial, are not subject to conventional harmless error or prejudice analysis.” Basemore,. 744 A.2d at 734.
I merely note my own view that, if a Batson claim implicates “structural error,” it is a unique form of structural error. Structural errors typically “deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair.” Neder, 527 U.S. at 8-9, 119 S.Ct. 1827 (emphasis added) (internal quotation marks omitted). The classic example is denial of the right to counsel. In contrast, as Batson’s progeny has made clear, the core right being protected by Batson is the right of citizen-jurors not to be discriminated against. When such purposeful discrimination occurs, relief may be granted to a party — the defendant or the Commonwealth in a criminal case — irrespective of whether the discrimination produced a
Finally, and respectfully, I would note that I believe the Spence5 procedural requirements are salutary in the direct review paradigm. A true assessment of strikes must account for the composition of the panel as a whole, and the conduct of other lawyers exercising strikes. It must be remembered that Batson works both ways: the right of jurors being at issue, neither the defense nor the prosecution may discriminate, and discriminating actions of one side, if unaccounted for, result in an incomplete picture.
Justice EAKIN and McCAFFERY join this opinion.. Post Conviction Relief Act,
. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).
. Appellee‘s active role in this conspiracy to murder multiple victims was far more than as a mere lookout. As this Court noted on direct appeal, “Hackett‘s convictions arose as the result of a conspiracy which he led for the primary purpose of killing Gregory Ogrod.’’ Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719, 721 (1993). Appellee‘s animus against Ogrod arose from “a living arrangement that went bad,” while co-defendant Spence‘s animus arose from a “soured drug-dealing relationship” with Ogrod. Id. In advance of the early morning, brutal assault that resulted in serious injuries to Ogrod and the murder of sixteen-year-old Maureen Dunne by a stab wound to the heart, appellee had, in addition to announcing his intention to kill Ogrod, offered a “hitman” $5,000 to kill Ogrod and Ms. Dunne. Id. at 721-22. Appellee was an architect of the crimes.
. Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993).
Concurrence Opinion
concurring.
To my knowledge, neither this Court nor the United States Supreme Court has squarely addressed the issue of whether a Caucasian defendant being tried jointly with African Americans has standing to raise a claim of racial discrimination in jury selection which otherwise would pertain only to the codefendаnts. 1 believe that such standing should be accorded, since Batson violations are a form of structural error “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself,” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991), and “undermining the criminal proceeding’s fairness as a whole[.]” United States v. Dominguez Benitez, 542 U.S. 74, 74, 124 S.Ct. 2333, 2335, 159 L.Ed.2d 157 (2004); see also Neder v. United States, 527 U.S. 1, 8-9, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999). See generally Commonwealth v. Basemore, 560 Pa. 258, 288 & n. 18, 744 A.2d 717, 734 & n. 18 (2000) (explaining that a Batson violation represents structural error). In my view, such standing would eliminate any need to parse between codefendants in the assessment of structural error, a special and limited category of claim with impact that is impossible to measure, both in terms of the trial under review and, more generally, public confidence in the judicial system.
That said, and while the circumstances presented are troubling, I agree with the majority that Appellee knew or should have known of the central facts underlying his claims pertaining to racial discrimination in his jury selection more than sixty days prior to the filing of his present post-conviction petition, and, for such reason, our jurisdiction is presently foreclosed under the Post Conviction Relief Act.
With regard to the majority’s adherence to the requirements of Commonwealth v. Spence, 534 Pa. 233, 246-7, 627 A.2d 1176, 1182-83 (1993), left to my own devices I would eliminate the Spence requirements as such and review unpreserved, post-conviction claims of racial discrimination in jury selection under the standards otherwise set forth in Commonwealth v. Uderra, 580 Pa. 492, 513, 862 A.2d 74, 87 (2004) (holding that, in relation to claims deriving from the absence of an appropriate objection at trial, a post-conviction petitioner may not rely on the prima facie case under Batson, but rather, must prove actual,
Finally, I support the remand for additional proceedings concerning Appellee’s claim under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). I would merely note that it is an unsettled matter whether such a claim is subject to the jurisdictional and procedural requirements of the PCRA, or is more appropriately suited to treatment under habeas corpus principles. Personally, I favor the latter understanding, particularly since the United States Supreme Court has couched the Atkins principle in terms identical to those pertaining under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (holding that the Eighth Amendment prohibits execution of persons whose mental illness prevents them from comprehending the reasons for the penalty and its implications). See Atkins, 536 U.S. at 321, 122 S.Ct. at 2252 (explaining that “the [United States] Constitution ‘places a substantive restriction on the State’s power to take the life’ of a mentally retarded offender” (quoting Ford, 477 U.S. at 405, 106 S.Ct. at 2599)). Notably, as well, the Court has treated analogous claims of death ineligibility as matters arising under state habeas corpus. See Commonwealth v. Judge, 591 Pa. 126, 141-42, 916 A.2d 511, 520-21 (2007).